The
Ninth U.S. Circuit Court of Appeals Friday overturned a lower court ruling
barring the U.S. Department of Energy from reclassifying high-level waste at
nuclear sites in Idaho,
Washington
and South Carolina,
saying it was too soon to consider opponents’ claims.

A
federal judge in Idaho
last year barred the Energy Department from reclassifying the waste after the
Natural Resource Defense Council, the Snake River Alliance, the Yakama Nation
and the Shoshone-Bannock Tribes filed suit.

The
appellate court on Friday said the issue was not ripe for resolution. All
parties must adopt a wait-and-see attitude rather than make assumptions about
the Energy Department’s intentions and ability to dispose of waste, the
three-judge panel explained.

“There
might be some danger in waiting, but that is not a greater hardship for NRDC
and the rest of our society than the one already imposed by our
high-level-waste Frankenstein,” Judge Ferdinand F. Fernandez wrote.

The
court sent the case back to the lower court with directions to dismiss.

“The
good news, from our perspective, is that the court did not rule on the merits
of the case, and as far as we’re concerned, it’s a sound case,î Natural Resource
Defense Council spokesman Elliott Negin said. ìAll it said is that the timing
is off.î

Washington
state and five other states had filed “friend of the court” briefs to the
appellate court asking it to uphold the Idaho
judge’s decision.

David
Mears, senior assistant attorney general for Washington
state, said the state’s concern all along has been that the Energy Department
not violate the statute.

“The
court recognizes how extremely important this issue is, the disposal of highly
radioactive waste,” Mears said. “We’ll be watching DOE’s actions very closely
and making sure they follow this appropriately and will file a legal challenge
if they don’t.”

Colleen
French, an Energy Department spokeswoman, said the agency was reviewing the
ruling and would not comment further.

As
much as 100 million gallons of nuclear waste were stored over the years in 239
tanks in the three states. Some of it has been removed and processed for
permanent disposal. But about 85 million gallons remains to be processed in
some manner.

Critics
contended that leaving any waste in those tanks will threaten the Columbia
River at south-central Washington’s
Hanford
site, as well as the Snake River
aquifer under the Idaho National Engineering and Environmental Laboratory and
the groundwater at the Savannah River Site in South
Carolina.

Earlier
this year, Congress approved a measure reclassifying sludge in the South
Carolina and Idaho
tanks from high level to incidental, a category that means it can be left in
the tanks and combined with concrete grout. The reclassification did not apply
to Washington
state.

About
53 million gallons of highly radioactive waste from World War II and Cold
War-era plutonium production is buried in Hanford’s
177 aging underground tanks. An estimated 67 of the tanks have leaked
radioactive brew into the soil, contaminating the aquifer and threatening the Columbia
River less than 10 miles away.

The
1989 Tri-Party Agreement, a Hanford
cleanup pact signed by the state, the Energy Department and the U.S. Environmental
Protection Agency, requires the Energy Department to remove as much waste as
technically feasible, but not less than 99 percent.

The Energy Department plans to siphon out
the liquid and sludge waste from the tanks, turning that into glass logs for
disposal, but it maintains the remaining residue is too expensive to extract.